Amending The Constitution

What if the Constitution wasn’t meant to be a relic, but a living commitment we change only when we truly mean it? We dig into Article V with Dr. Sean Beienburg to unpack how the Constitution can be amended, why the framers chose supermajorities over unanimity, and how states can pressure Congress when Washington stalls. Along the way, we separate constitutional law from the Constitution itself, clarifying what courts can interpret—and what only the people can change.

We trace the two proposal routes—through Congress or a state-called convention—showing how the dormant convention option has shaped history, most famously by nudging Congress toward the 17th Amendment. We revisit the repeal of Prohibition via state ratifying conventions, explore near-misses like the balanced budget amendment and the ERA deadline, and challenge the common claim that Article V is “too hard.” The numbers tell a different story: very few amendments that cleared Congress died in the states, which means the genuine hurdle is building a proposal-worthy coalition in Congress.

We also tackle judicial power with a clear lens. Drawing on Federalist 78 and Washington’s Farewell Address, we explain why judicial independence relies on fidelity to the Constitution’s text, not rewrite-by-ruling. Then we examine how originalism and textualism address shifting word meanings—like “domestic violence” in Article IV—so that judges don’t silently change the document through modern vocabulary. Finally, we contrast federal and state constitutions: states amend faster and more often, giving citizens a practical path to entrench rights and policies locally, as seen in the post-Dobbs landscape.

If you care about real constitutional change—who proposes it, who ratifies it, and what makes it legitimate—this conversation is your guide. Subscribe, share with a friend who loves civics, and leave a review telling us which amendment you think could actually clear three-quarters of the states today.

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Chapters

• 0:00 Why the Constitution Can Change
• 2:54 Article V: Paths to Amendment
• 5:20 State-Driven Pressure and the 17th
• 7:07 Ratification Conventions and Prohibition
• 7:31 Courts vs. Constitutional Change
• 10:14 Hamilton, Washington, and Judicial Limits
• 13:06 Textualism, Originalism, and Word Drift
• 15:51 Is Article V Really Too Hard?
• 19:56 The ERA, Deadlines, and Near Misses
• 23:17 State Constitutions: Easier Paths, Different Logic
• 24:54 Federal vs. State Rights After Dobbs
• 25:49 Closing and Related Episodes

Transcript

SPEAKER_00: 0:46

Welcome back to Civics in a Year. Today we are talking to Dr. Sean Bienburg about amending the Constitution. So we have so many episodes on the Constitution, but the Constitution wasn't meant to just be written and left. It has an amendment process. So, Dr. Beyenberg, can you walk us through how the Constitution can be changed?

unknown: 1:08

Right.

SPEAKER_01: 1:09

And I think that you started with a really important point, which is that the idea that the Constitution is sort of fixed and permanent is not something that the founders believed in. It's not something that contemporary originalists believe in in the sense that it can never be changed. The idea of a people's ability to alter and abolish their government is littered throughout state constitutions. It's in foundational speeches. The question is not can the constitution be changed? There have actually been some pretty dumb state constitutions that did not have their own amendment process. And you'd have to go through this really convoluted convention or you'd have to just destroy the whole constitution. The founders of the U.S. Constitution followed the better state constitutions and did have a process recognizing the need for change, but wanting to make sure that that change was sort of deliberate and thoughtful. Again, the idea is that a constitution is a higher form of law than just simply a sort of temporary political policy preference. And so Article V lays out the exclusive way of changing the Constitution, or I should say, the exclusive Article V set of ways to change the Constitution, because there's a little variation. The normal model is that two-thirds of each House of Congress propose an amendment and then they send it to the states, and three-quarters of the states ratify it. I always go back to Federalist 39, but this lays out the idea where, again, the protocol for changing the Constitution recognizes this sort of mixed state and mixed federal and national model. And this is unlike the Articles of Confederation, which required unanimity to change. And not just everybody voting, but all if a state didn't participate, that was effectively a no-vote, right? So the founders of the Constitution or the writers of the Constitution recognized you need change. It should come basically from the state, uh, in terms of broad regional ideological preference, but you should not let sort of one holdout destroy the system. So the idea is we need supermajorities of both, two-thirds to propose, three-quarters of the states to ratify. There's an alternate proposal process, because if you think about one of the major reasons you might want to amend the constitution is if you think the national government, and particularly Congress, isn't playing fair, isn't doing something necessary. And so if Congress were the only source of constitutional change, they could create basically a bottleneck protecting their own power. So sort of at the last minute, the ratify the constitutional convention put in an alternate proposal method, which is sometimes called the convention of states. But in this case, a smaller majority of states, a smaller, it's a major number of states can propose an amendment and basically force Congress to create a ratifying or create ratifying convention, uh, ratifying um protocol. But this is basically a way for the states to say, Congress, you're not doing this, or you have a power we don't want you to have anymore, or this is a change that we want that you're obstructing. This technique has never been used, but states threatening to do it, and enough of them pushing it through, have occasionally pushed Congress to act. The clearest example of this is the 17th Amendment. Obviously, if you're a United States senator and an incumbent, you clearly like the way that you were chosen because you will clearly were able to do it. And it uh there was a discussion that maybe they wanted to make the Senate chosen by the people instead of the state legislators. Congress didn't want to do that. So the state legislators themselves started saying, we're gonna call for this constitutional convention. So this convention of states thing, there is occasionally an effort, probably at this point, I think a balanced budget, which narrowly failed in the 1990s, I think by one vote in the Senate, if I recall correctly. I think it got two-thirds in the House, and I think two-thirds minus one vote in the Senate, as I recall. That's one where there are a fair number of states have called for a federal balanced budget, like most states have to have in their constitution, but the number hasn't quite hit it. There is an effort by generally conservative-leaning states to uh have a convention of states to basically amend a constitution to override some federal constitutional decisions that those states think have inappropriately expanded federal power, such as by misinterpreting the commerce clause or the spending power and such. So that tool exists, but it has never been successfully used in American history. There's a similar sort of bypass where if you're doing something that's going to annoy the state legislatures, that the state legislatures could block ratification. And so there's an alternate protocol where instead, and this is agnostic as to which method was used to propose a constitutional amendment, but you can create separate ratifying conventions more like existed at the time of accepting the U.S. Constitution than the state legislatures. I believe this has only been done in the instance of repealing prohibition. The 21st Amendment was used with that convention process. I don't think any of the other ones have used that. But the normal model is two-thirds of Congress, three-quarters of states, three-quarters of state legislatures. So that's the sort of nuts and bolts protocol of that. Many people argue that the constitution sort of is changed by judicial interpretation. To be precise, this is changing constitutional law, which may or may not actually reflect the constitution rather than changing the constitution itself. As a practical matter, in some senses, it looks the same because the court making claims of judicial authority, they have asserted the equivalence of that as the constitution itself. But strictly speaking, uh, that's not changing the constitution. And the idea that the constitution can be changed basically by just sort of regular politics or an election or judicial interpretation is fairly anathetical to certainly the way that the founders understood this, which is that Article V was the exclusive means of constitutional change. So, for example, Washington's uh excuse me, Federalist 78, which uh discusses judicial review. We did a podcast about that, and in which, just this is a quick rehash, Hamilton makes the case for a strong and independent judiciary, but an independent judiciary is basically empowered to do that only because they are enforcing the constitution as the highest law. The the idea that the judges would just sort of be able to impose their policy preferences or update it themselves is inconsistent with the logic of judicial review. They only get judicial review and judicial independence because of the constitution. So you see in Federalist 78, Hamilton says effectively, just because we can infer that there's a provision of the Constitution that's unpopular doesn't mean the judges should ignore it. In fact, he says maybe that's when you need it the most, is that there's a temporary majority that wants to pass an unconstitutional law. So he says explicitly the judges would not be justifiable in violating those provisions or contriving it infractions in this shape, even if the people have sort of approved them. And then he goes on to say, until the people have, by a solemn and authoritative act, annulled or changed the established form. That is to say, that's a nice long way of saying Article V, unless they've changed this officially, the Constitution is binding upon the people and uh collectively and individually. Yes, it's going to take judicial bravery to enforce it at that moment, but this is the exclusive way to change it. You see the logic of this reappear in Washington's farewell address in a section which is almost certainly written by Hamilton, so it's not surprising. It sounds like Federalist 78. Washington says, the basis of our political systems is the right of the people to make and alter their constitutions of government. That's language that appears in a lot of political theory, locks, state constitutions, etc. But Washington goes on to say the constitution, which at any time exists till changed by an explicit and authentic act of the whole people, that is to say, the convoluted ratification process to get this broad buy-in. The constitution, he says, is sacredly obligatory upon all. So Washington recognizes this idea of Article V exclusivity. My favorite, uh, that I think actually the best sort of most thorough explanation of this uh actually comes from Calvin Coolidge when he is a governor. This is during prohibition. Prohibition is deeply unpopular in Massachusetts. Calvin Coolidge himself doesn't like prohibition, both on the policy grounds and on the sort of, he's a state's pre-states rights committed and on the fact that the federal government is now basically setting policy. Now he recognizes that nonetheless, the people have disagreed with him. They have passed the 18th Amendment. And Massachusetts voters, I'll simplify this a little bit. Basically, Massachusetts voters are trying to get him to have the state push back and not enforce prohibition. And uh Coolidge basically says that he has taken an oath to the Constitution. The Constitution is written, not the Constitution as his voters might wish it. As he says, when I took office, I gave an oath to support the Constitution of the United States. My oath was not to take a chance on the Constitution, it was to support it. Why should I jeopardize my oath by basically doing what these folks had done? And he goes on to say opinions and instructions, that is from his voters, like them telling him this is we want this, we want you to ignore this. He says, opinions and instructions do not outmatch the constitution. Against it, they are void. Instructions are not given unless carried out constitutionally. Instructions are not carried out unless constitutionally. There can be no constitutional instruction to do an unconstitutional act. So Coolidge very much is laying out the case to say, if you want to change it, basically there are ways to do it. And there are other governors who are quite explicit in saying, I don't like it any more than you do. But I took a literal oath to the Constitution, and Article V has established this. And until we take the 18th Amendment out, we have to do this. There are actually a few figures who lose politics, who lose elections on this ground, even though they hate prohibition themselves. And I think it's really admirable that they're willing to throw away their political careers over taking seriously the oath to enforce the Constitution. So what does this mean sort of in practice? So text, so this is a little bit con law nerdy, but textualism says that if is a method of interpreting the Constitution, which is effectively that you follow the text. This is pretty obvious. Originalism is a subset of textualism which says you should follow the text as it was understood at the time it was written and approved by whomever. And this is how we do contract laws. So, and what does this mean in practice? Well, say a living constitutionalist interpretation of the Constitution would say judges should interpret flexibly, they should expand the powers of the Constitution even without an amendment, they should recognize these changes. An originalist would say, going back to Hamilton and Washington's farewell address, changes are important, changes are good, but the proper institution to do this is Article V. Judges are not empowered to do this kind of thing because judicial review follows from the text of the Constitution's enforcement itself, not their vision of what it ought to be. And so, one example of how this plays out in practice and why an originalist would say it's not their job to change it, they need to follow Article V. So uh Article Four allows, and this one's kind of coming up in contemporary politics. I won't say too much on how, but Article 4 is a provision in which the states can petition the federal government for help in basically putting down domestic violence. Now, domestic violence, uh, and James Madison talks about this because he says words can sort of change their connotation and their meaning over time. And he says this is this is why Madison says you should do, he doesn't use the word originalism, but something like following the ratifying convention's understanding. Madison says, because words are going to shift meaning, you can actually have the Constitution change in terms of what its powers and things are if you just use the contemporary meaning of words instead of how they were understood at the time. So in the domestic violence case, when we say domestic violence today, we think of something like spousal battery, right? Domestic violence in the Article 4 means effectively an insurrection, right? Local, local sort of organized violence. And so this is one of the places where sort of basic textualism and originalism would differ. Because basic textualism, if you're just looking at straight up how do we understand this word today, would say that the federal government has authority to suppress domestic battery, but doesn't have authority to suppress an insurrection in the same way. And so there are other examples of this, but I think that's probably the clearest one where uh an originalist would say if we want the federal government to have power to enforce that other thing or not enforce that other thing, you do it by Article V. But judges really should be trying to understand how a phrase was done and if the people want it, because otherwise there's not that much buy-in, there's not that much legitimacy for it. And I want to say one other thing, if I might, on Article V. We have this narrative, which is we need to have flexible living constitutionalist interpretation because the constitutional Article V process is just so hard. And particularly the critics, I think generally are focused more on the ratifying side, that it's too hard to get three-quarters of the states. But throughout American history, the entirety of American history, and I always ask people this when how many how many amendments do you think have cleared Congress and failed at the state level? Do you do not do you have a guess at this, Liz? Do you know this?

SPEAKER_00: 15:26

I do not, and I'm kind of I'm I'm gonna assume a lot, but I have no idea.

SPEAKER_01: 15:33

So in the entirety, so there have been 27 successful amendments made to the United States Constitution. Now, if we want to treat the Bill of Rights as a one block, then you can you know drop that number by nine. But in the entirety of American history, and there have been tens of thousands, I think, I think 10,000 proposals of just somebody, just somebody in Congress saying, I want to amend it. Right. But one that was successfully passed from Congress to the states and then failed. You want to take it? You're feeling brave, you want to take a guess? 27 successful 200. The answer is six. Six have failed in the entirety of American history at the ratification states. That's it. That's it. The bottleneck is not the state ratification level, the bottleneck is Congress, or the bottleneck is the bottleneck is is the two-thirds thing. Justice Scalia, who is an originalist, said maybe we should make this a little easier. I think there's a case to be made that probably making the proposal process a little easier would be good because people would get more. We've we've basically made a self-fulfilling prophecy where people say, we can't amend the Constitution, it's too hard. So we don't even try. So let's go to the courts instead. Whereas actually the number that's failed is not really too many. And of those six, one of them is an obscure provision at the founding on basically calculating apportionment that we probably wouldn't want anyway. One of those six was a provision regulating titles of nobility, which nobody's gonna care that much about. One of them was an effort to put a super duper ultra guarantee that slavery would be protected as a way to avert the civil war. Congress proposed basically an explicit guarantee that the federal government really, really, really, really promises it would never touch it in the states. Now, that was arguably implicit in federal constitutional law anyway, right? The debates in the 1850s and 60s were about slavery in the territories, but none of the Republicans were proposing to eliminate slavery in the states that it exist in. So this is basically an alternate history 13th amendment that says we super, super, super ultra pinky swear promise we will not touch slavery in a state. That's one we probably don't want in the Constitution either. So the other three, one was uh a child labor amendment, which probably would have passed if they tried it a little harder, but instead they just got a court case to effectively take care of it in 1941.

SPEAKER_00: 17:54

One is basically an equal rights amendment that which is probably the most famous one because it kind of resurfaced itself. And it's one I know that we talked about a lot in APGov and schools, you know, the equal rights amendment, and it it was ratified, but then the implementation was uncertain. Like there's a whole thing.

SPEAKER_01: 18:18

It didn't clear the threshold. So most of the amendments made in the 20th century have an expiration date. If it's not ratified by a certain number by certain dates, then it doesn't clear. And so it got within, I think, a couple of states, but then states started revoking it because they decided that the Supreme Court basically picked up doctrine that said, I won't get too technically in the weeds here, but effectively they said discrimination, classifications based on sex that are clear arbitrary discrimination are unconstitutional, but classifications that are based on sort of biological, like obvious realities are not unconstitutional, which is something that even Ruth Bader Ginsburg picks up in the BMI case. So with that amendment, it night, I would say most of what almost all the advocates wanted, that one was sort of implemented by the court anyway, and not the sort of probably most extreme margins. Um, so that may be one that people would say maybe we still want, you know, maybe that would have been better if that one passed or not. Uh, the last one didn't clear effectively would have more or less given DC statehood. So that one's controversial. There's good reasons that DC probably shouldn't be a state, but like that's a politically contentious issue. But you're probably looking at one and a half, maybe, amendments in American history that people would look and say, Yeah, we wish that was in the Constitution, but it didn't get in there because of the state ratification stage.

SPEAKER_00: 19:39

So I'm very shocked by that number, honestly. That is so small.

SPEAKER_01: 19:45

It is very small, it's very small. So I think it's unfortunate why folks listening to this podcast, the founders, originalists, whomever, they thought the constitution should be amended, but we've created this sort of doom loop where we say we can't do it because it's impossible. But as just as an empirical matter, it's become a self-fulfilling prophecy where we don't even try. We don't even try. And even before the last few years of sort of ultra gridlock in Congress, and so a couple have come pretty close. We did come within one vote, like I said, of a balanced budget in the 90s. I think they came within one vote of a flag burning amendment. As I recall, Mitch McConnell was actually the pivotal vote blocking that because he was whatever you think of Mitch McConnell in general, he was very committed to free speech. That was one of his like dogmatic, dogmatic views. And he pushed pretty hard to make sure that failed in the Senate. So that one was close. But yeah, the idea that there's been widespread failure because the ratification process is too hard, it's just not borne out by American history. The this is one of the places where the founder system is a lot better than we give it credit for in popular sort of understanding.

SPEAKER_00: 20:55

And I think it's interesting that the last, the 27th amendment was ratified in the early 90s, but it was actually a it was proposed with the Bill of Rights and just kind of never went anywhere. And then a college student in Texas had an assignment, right? That was like, what you know, what amendment should be ratified. He wrote the paper, and I believe it's a story that I'm remembering, he got like a C.

SPEAKER_01: 21:25

Yeah, it wasn't a great rain.

SPEAKER_00: 21:27

But then he, but then you know, that's the 27th Amendment. The 27th Amendment says basically Congress can't give themselves a raise until an election happens, right? Like they can't just give themselves raises. But that's I mean, 1992 is a long time.

SPEAKER_01: 21:46

And that's part of why they that's part of why they've added the if you don't have it passed by X number of years, it expires. Because this also gets, I mean, that one's pretty straightforward. But if you're trying to think of constitutional interpretation about when do we what's like is the meaning from 1789? Is it from 1992? Right? It gets messy. So that's why they put that sort of ticking clock. That's I think prohibit was the first one that had that. But then that's what ultimately did in the the equal rights amendment in the 70s, the ERA. But yeah, the the original one was proposed back with the first block of them, that one and the congressional, the congressional apportionment one that also failed, that's one of the six. So it was one of the seven before then, but now it's only six. So I do want to also briefly note that I'm a state constitutions guy. The state constitutions are quite different than this. State constitutions have much more variety in terms of the way that they are amended. Most of them, I'd say it's basically a majority or a slight supermajority of the state legislature proposes it, and the citizens get a ratified. Some of them are much harder. You have to have multiple elections or multiple legislators or particularly high thresholds for ratification. Florida, I think, is the one that has the highest ratification threshold of 60% of voters to approve something. So some of them make it hard. Others make it very easy. Arizona, California, generally the Western states, make it so that the amendment process is quite easy. And I think there's a way to understand this is actually a really nice complementarity of that the state systems are much easier to amend. There's less damage, there's more likely to be sort of a consensus on policy. It doesn't feel like policy is being imposed from afar. And so there's a logic to having a harder federal constitutional process. You don't want to change this unless there really is massive multi-regional, multi-ideological buy-in. But you can do a little bit more at the states. And because the states are doing more politics anyway, maybe you want to constrain them. So Article V, by being hard, it's not doesn't mean that constitutions are inherently hard. The state governments do most of your politics anyway. So there are ways to uh implement things. Just as an example, without commenting on the merits of this. So after the Dobbs case overturned Roe v. Wade, many states put constitutional provisions in there where it's much, much easier to do than, for example, the effort by some members, Democratic members of Congress, to overturn Roe v. Wade and use that, use Article V to do that. Excuse me, overturn Dobbs to basically reinstitute Roe v. Wade. Whereas I I think it's 10 or 15 states already have basically written a de facto Roe v. Wade into their state constitutions because the state constitutions uh are a lot more flexible. So just because something isn't a constitutional right at the federal level, there's nothing stopping you from getting it through as a state level at the state level.

SPEAKER_00: 24:50

Yes. And we are going to go into these amendments, especially you know, the first 10 in upcoming episodes, which I am so excited to talk about. And Dr. Beyenberg mentioned a couple of episodes, specifically Federalist 39, 78, and then state constitutions. And I will link those in the show notes so that you can go back and listen to those. Thank you, Dr. Beyenberg. I'm excited for our next one.